Copyright, Culture & Black Music: A Legacy of Unequal Protection

by K.J. GREENE*

I. Structure And Function Of The Copyright Regime.. 344 A. Origins and Purpose ...... 344 B. Foundations of Copyright Law ...... 348 1. Rights Protected by Copyright ...... 348 2. The Idea-Expression Dichotomy ...... 349 3. Requirement of Reduction to Tangible Form.. 351 4. Originality and Minimal Creativity ...... 351 5. Registration Formalities ...... 353 II. Copyright and Culture ...... 354 III. African-American Artists & Intellectual Property ..... 361 A . Background ...... 361 B. A History of Appropriation ...... 367 1. Patterns of Inadequate Protection ...... 371 2. Harm To The Community ...... 373 C. The Relationship Between Appropriation of African-American Music and American Copyright Law ...... 375 IV. Civil Rights As Intellectual Property Rights ...... 383 V. Toward Possible Prescriptions ...... 388 A. Access to Legal Services ...... 389 B. Importation of Moral Rights Notions ...... 390 C. Heightened Standard of Originality ...... 391 VI. C onclusion ...... 39 1

* B.A., S.U.N.Y., Old Westbury, 1986, J.D., Yale, 1989, Assistant Professor, Thomas Jefferson School of Law, San Diego, CA. I would like to acknowledge Phil Harvey, John De Witt Gregory, Paul Kahn, Susan Bisson-Rapp, and Colin Crawford for valuable comments on the piece; any errors/omissions are my own. HASTINGS COMM/ENT L.J. [VOL, 21:339

Introduction This article explores a dynamic of Black history and the law largely ignored or overlooked by legal scholars: how African-American music artists, as a group, were routinely deprived of legal protection for creative works under the copyright regime. This perspective has only been faintly hinted at in legal scholarship, leaving Black artists as the "invisible" men and women of copyright jurisprudence. The issue of copyright deprivation and Black artists is highly significant, given the enormous cultural contribution of Black music to American society, the importance of the music to Black culture, and the tremendous economic benefits at stake. When one examines the history of issues like the exploitation of Black artists, there is the risk of falling into a "victim" perspective, with all its attendant emotional baggage. But the future for Black artists- and indeed artists of all races- will be brighter if we understand the pitfalls of the past. Moreover, as a society: to deal with what remains [wle have run away from race for far too long. We are so afraid of inflaming the wound the that we fail America's central social problem. We will never achieve racial healing if we do not confront each other, take risks, make ourselves vulnerable .... Copyright law and other intellectual property law theoretically provides neutral economic incentives to creators, and protects economic interests in original works.2 It has been

1. HARLAN L. DALTON, RACIAL HEALING: CONFRONTING THE FEAR BETWEEN BLAcKs & WHITES 4 (1995). 2. The source of Congress' power to protect authors and inventors is the United States Constitution, which provides that Congress shall have the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries." U.S. CONST. art. I, §8. The term intellectual property encompasses, broadly, patents, copyrights and trademarks. See Dale A. Nance, Foreword: Owning Ideas, 13 HARV. J. OF L. & PUB. POL. 757, 757 (1990) ("Roughly speaking, patents are federal statutory rights over novel inventions or designs. Copyrights are federal... rights over original literary or artistic expressions... trademarks are Identifications of commercial origin ...."); see also Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L. REv. 287, 294 (1988) ("A universal definition of intellectual property might begin by identifying it as nonphysical property which stems from, 19991 COPYRIGHT, CULTURE & BLACK MUSIC said that "[in essence, copyright is the right of an author to control reproduction of his intellectual creation."3 Yet this right has failed Black musicians and composers as a group in the recent past. Black artists as a class consistently received inadequate compensation, credit, and recognition for original works. 4 Part of the reason for the endemic exploitation of Black artists is the interaction of the copyright regime and the contract regime, a subject beyond the scope of this article, but one ripe for further exploration. While it is true that the music industry has generally exploited music artists as a matter of course,5 it is also undeniable that African-American artists have borne an even greater level of exploitation and appropriation. As new technologies continue to cause explosive growth in the value of information, the value of copyrights and intellectual property will continue to increase sharply. The Constitution established the copyright regime, but the rapid emergence of new technologies and multimedia have more recently "promoted [copyrights] from pawns to queens on the global chessboard."6 Increasingly, all artists will need to stay well-informed of intellectual property law to reap the full benefits of the emerging information super-highway' and is identified as, and whose value is based upon some idea or ideas. Furthermore, there must be some element of novelty."). 3. ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT FOR THE NINETIES, 13 (4th Ed. 1993) (citing Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law 3-6 (1961)). 4. The influence of blues artists on white rock and roll artists has been well- documented. It has been said, for example, that the British rockers the "Rolling Stones confirmed four basic rock and roll truths: attitude is (nearly) everything; rock's original sources (black and country music) remain its most fertile ones; Chuck Berry-derived rhythm guitar is rocks's essential sonic vehicle; and lyrics are most evocative when just short of indecipherable." ANTHONY DECURTIS & JAMES HENKE, THE ROLLING STONE ALBUM GUIDE 600 (1992). 5. See Theresa E. Van Beveren, The Demise of Long-Term Personal Service Contracts in the Music Industry: Artistic Freedom Against Company Profit, 3 UCLA ENT. L. REV. 377, 381 (1996), noting that "[riecording companies have traditionally taken advantage of their artists' ignorance, inexperience, lack of involvement, naivete and/or lower social status." 6. Alan J. Hartnick, Aid for Copyright Lawyers in InternationalTransactions, N.Y.L.J., Dec. 7, 1990, at 5. 7. The Internet, often called the "information super-highway" is a complex -communications network that links private and public computer networks, HASTINGS COMM/ENT L.J. [VOL. 21:339 multimedia works of art made possible by computer technology.8 The legal issues raised by these technologies will require ever more vigilance and sophistication to obtain and ensure the protection of original works of music and other artistic creations:9 a 'virtually unlimited future looms on the horizon for would-be thieves as popular forms of entertainment become increasingly available with just a few keystrokes at a computer terminal."10 Given the heightened importance of copyright in the information age, it is just as important to look backwards as it is to look forward. History teaches us that the social structure of our racially stratified society, along with structural elements of the copyright system- such as the requirements of tangible (written) form, and minimal standard of originality- combined to deny Black artists both compensation and recognition for their cultural contributions.1

systems and individuals. See Dan Thu Thi Phan, Will Fair Use Function on the Internet, 96 COLUM. L. REV. 169, 187 (1998) (The Internet is an international network of linked, overlapping, and interconnected computers and computer networks). See also First Amended Complaint, America Online, Inc. v. Cyber Promotions, Inc., Civ. Act. No. 96-462 (E.D. Va. 1996) (alleging use of the Internet to "as a tool to perpetuate fraud, [and] to misappropriate intellectual property."). 8. For an overview of multi-media, see Judith Merians, An Overview of New Technology and the Entertainment Industry, 1995-96 ENT., PUB. & THE ARTS HANDBOOK 241, 243 (1996) ("[blroadly defined, a multimedia work is one that results from the combination of images, sound, text, computer software and hardware."). 9. See Mark Litwak, Potholes On the Information Superhighway: A Road Map to Legal Issues in Multimedia Productions, 1995-96 ENT., PUB. & ARTS HANDBOOK, Edit. 199 (1995-6) (noting that numerous "legal hurdles to overcome in making even a simple multimedia program ...."). 10. John Gibeaut, Zapping Cyber Piracy, ABAJ., Feb. 1997, at 60-61.. 11. Few intellectual property scholars have examined the relationship between culture and copyright. This fact seems surprising since much of the subject matter of copyright- art, music, literature, dance- must be considered products of various cultures. Without cultural production, there would be no need for copyright. In this connection generally, it has been noted that "very few articles on popular culture and law have made it into legal scholarship, and even fewer actually use the methodology of cultural studies." Naomi Mezni, Note, Legal Radicals in Madonna's Closet: The Influence of Identity, Politics, Popular Culture, and a New Generation on Critical Legal Studies, 46 STAN. L. REV. 1835, 1859 (1994). 1999] COPYRIGHT, CULTURE & BLACK MUSIC

It would be unfortunate if the inequality of the past persists into the world of cyberspace 2 and multi-media.'3 The "hip hop" nation of "Generation X"'4 inner-city youths may in many ways be compared to the. Blues artists of the pre-war South. Both groups are legally unsophisticated, and thus subject to economic exploitation without due compensation. The lessons to be learned from the treatment of Blues musicians should be used to prevent similar abuses against today's hip hop artists. As new issues develop in copyright law, it will be important to people of color, and to an egalitarian society as a whole, that the new copyright regime not duplicate the inequalities of the old. An underlying assumption of race- neutrality pervades copyright scholarship. However, not all creators of intellectual property are similarly situated in a race-stratified society and culture. The history of Black music in America demonstrates the significant inequality of protection in the "race-neutral" copyright regime.' 5 It is the hope of this author that questioning the assumption of race

12. Cyberspace has been defined as a "'nonphysical universe' resulting from the linking of computers and computer networks, [which] allows individuals to communicate together 'without the constraints of time and distance."' Cynthia L. Counts, Libel in Cyberspace: A Framework for Addressing Liability and JurisdictionalIssues in this New Frontier, 59 ALBANY L. REV. 1083, 1086 n. 5 (1996). 13. The possibilities of artist exploitation have been expanded by the emergence of new technologies. See, e.g., Note, Visual Artist's Rights in a Digital Age, 107 HARV. L. REv. 1977, 1979 (noting that "digital technology makes it easier to manipulate existing works, which leads to new possibilities for artists who can harness the technology, but also increases the potential for unauthorized alteration and appropriation of copyrighted works."). 14. For a description of the term "Generation X", see Note, Steven M. Cordero, Cocaine-Cola, The Velvet Elvis, and Anti-Barbie: Defending the Trademark and Publicity Rights to Cultural Icons, 8 FORD. INTEL. PROP., MEDIA & ENTERTAIN., L.J. 599, 654 n.21 (The term, Generation X, now widespread, was first popularized to describe the generation born between 1964 and 1979). 15. Scholars in recent years have began to question claims of neutrality in legal discourse, reasoning that the application of neutrality to the minority experience masks forms of social domination. See Steven H. Shiffrin, Racist Speech, OutsiderJurisprudence and the Meaning of America, 80 CORNELL L. REV. 43, 45 n. 10 (1995) ("Critical race theory... [emphasizes] the extent to which claims of neutrality. and universality are in reality proxies for racist political and cultural assumptions. In the same vein, feminist jurisprudence emphasizes the gendered character of claims to neutrality and universality."). HASTINGS COMM/ENT L.J. [VOL. 21:339 neutrality in copyright law and examining how social factors impact intellectual property may assist in changing the way we devise strategies to equalize our society, and may also empower others to move forward in the conversation about race, entitlement and restitution. This article contains five sections. Part I outlines briefly the historical, structural and theoretical under-pinnings of the copyright regime. Part II explores the relationship between Black culture and music. Part III critiques the elements of the copyright regime that have facilitated cultural and commercial appropriation of Black music. Part IV explores the relationship between civil rights and intellectual property. Finally, Part V briefly discusses possible prescriptions to the pattern of appropriation and discrimination, including the importation of moral rights notions. I Structure And Function Of The Copyright Regime

A. Origins and Purpose Ownership of property has long been central to the American experience, and vital to success, status and prosperity in America.' 6 It has been noted that: [t]he concept of property is powerful ... [and holds] a particularly fundamental place in our constitutional structure ... property has been more than simply an imaginative or symbolic concept; it has been the medium through which struggles between individual and collective goals have been refracted. 17

16. The centrality of property ownership to American culture and society is difficult to overstate. Property scholars have postulated that a connection exists between property and the experience of self. See, e.g., Barbara Radin, Property and Personhood, 34 STAN. L. REv. 957 (1982) ("The premise underlying the personhood perspective is that to achieve proper self-development- to be a person- an individual needs some external control over resources in the external environment. The necessary assurances take the form of property rights."). 17. Laura S. Underkuffler, On Property:An Essay, 100 YALE L.J. 127 (1990). 19991 COPYRIGHT, CULTURE & BLACK MUSIC individual, rather than group, creation is normative. ' °' Accordingly, the intellectual property rights they endorsed represent the belief that economic rewards to individuals best serve the common good. These underlying assumptions of copyright law conflict with the concept of group or communal creation which characterize other cultures.10 2 In such cultures, aesthetic and spiritual rewards, rather than 10economic3 rewards, may be a primary motivator for creating art.

African-American Artists & Intellectual Property

A. Background The contribution of African-Americans to the cultural landscape of art, literature, and especially music is indisputable. No ethnic or racial group has contributed more, or been more influential, in the area of music.0 4 A wealth of distinctly North "American" art and culture bears the stamp of the Black experience in America.'0 5 Black Americans retained

101. See FARLEY, supra note 68, at 29 (noting that "copyright law is premised on individual rights, and recognizes group rights only in limited situations."). 102. See id. 103. For a contrast of Western values to artists in African cultures, see, BEBEY, supra note 91, at 33, (remarking that the African musician does not reserve his extraordinary talents for his immediate circle, but shares them with anyone who Is willing to listen.... Many Europeans are amazed to see first rate African musicians agreeing to record for radio without payment .... In the 1950's many records of traditional and more modem African music were made under such circumstances with the artists sometimes being rewarded with no more than a bottle of locally brewed beer."). 104. In music, for example, It has been noted that Louis Armstrong's genius transformed not only jazz, but all American music: "Ulazz was not the only music changed by the advent of Armstrong. All American music- serious and popular- has been affected by him through and through." DAN MORGENSTERN, JAZZ PEOPLE 81 (1976). 105. This is particularly true of music, and probably just as true of art and literature. Jazz music "evolved in part from spirituals song by slaves land] is the only truly American musical form. It was created by blacks for blacks." See FRANK BERGEROT,THE STORY OF JAZZ: BoP AND BEYOND 13 (1991). It has similarly been noted that "the music of Black America, beginning with ragtime at the turn of the century, sent successive shock waves throughout the white mass culture... [which] left lasting marks on our social landscape." SALES, supra note 82, at 4. HASTINGS COMM/ENT L.J. [VOL. 21:339 many uniquely African cultural traditions in the forced immigration from Africa to America. 06 However, much of the collective Black experience in America has been influenced by discriminatory politics and economics in the United States. Without the ideology of racial segregation in American history, no need would have existed for a distinct "Black" culture. Racial segregation required cultural adaptations and responses for survival that account for much of the distinctiveness of African-American culture, and hence art."' African-American leaders like W.E.B. Dubois believed that the price of desegregation would be the demise of "American Negro Culture."'0 8 Many cultural works have reflected the centrality of race relations to American history, and the phenomena of cultural and racial segregation.0 9 For example, the film which "altered the entire course of American movie making", D.W. Griffith's The Birth of a Nation (1915), was also widely "denounced as the most slanderous anti-Negro movie ever released."1'0 The

106. See Gene Lees, Jazz Lives: 100 IN JAZZ, Foreword (1992), noting that "African culture was primarily oral, and the very deprivation of formal literate education for blacks has had the effect of keeping a form of it alive well into out own time . . . [an oral culture is inherently different from a literate one, since speech is a spontaneous and improvisational act." " 107. See LEROY JONES, BLUES PEOPLE, 66-67 (1968): "Early blues developed because of the Negro's peculiar position in America... and was perhaps the most impressive expression of the Negro's indivduality within the superstructure of American society." 108. BOXHILL, BLACKS & SOCIAL JUSTICE 184 (rev. ed. 1984). 109. Perhaps it is not then surprising that the recent leading cases on parody and obscenity in music involve the Black rap group 2 Live Crew. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (upholding as fair use 2 Live Crew's unauthorized parody of the Roy Orbison composition "Pretty Woman"); Skywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990) (declaring 2 Live Crew's best-selling rap album "As Nasty as They Wanna' Be" to be legally obscene). 110. DONALD BOGLE, TOMS, COONS, MULATrOES, MAMMIES AND BUCKS: AN INTERPRETIVE HISTORY OF BLACKS IN AMERICAN FILMS 10 (1989). The film depicts the idyllic "Old South, the Civil War, the Reconstruction period and the emergence of the Ku Klux Klan." Id. Bogle notes that the film, memorialized the enduring stereotype of the "black bucks ... big, baadddd niggers, oversexed and savage, violent and frenzied as they lust for white flesh .... Griffith played hard on the beastiality of his black villainous bucks and used it to arouse hatred." Id. at 13-14. That the film was advertised relentlessly, suggests a correlation with a large increase in lynching in the South. See id. at 15. 19991 COPYRIGHT, CULTURE & BLACK MUSIC courts of the time reflected the prejudices perpetuated by Hollywood-a situation which has persisted even in recent decades.' Even as a people regarded by white society of that era as subhuman "baboons, monkeys [and] mules,""' 2 slaves and their free ancestors created many original works with great impact on American society."13 Black slaves in America passed down the African musical tradition,"14 incorporating European music styles to create something totally new. ' 5 Music was critical to the continuity of African folk culture, and has been to African-American culture as well. In the African tradition, "music was not only an individual expression accompanying

111. For a narrative analysis of racial divisions and animus toward minorities in the courts see, BRUCE WRIGHT, BLACK ROBES, WHITE JUSTICE 24 (1987). Wright, a former New York judge, charged that "[riacism inside the courts is but a reflection of what goes on in society in general." Id. at 24. For this reason, state law copyright doctrine has never comprised a predictable or coherent body of law, and Black Americans, the majority of whom lived in the South, were excluded from filing civil suits in the courts under the regime of Jim Crow. See Ralph S. Brown & Robert Denicola, COPYRIGHT: UNFAIR COMPETITION, & OTHER TOPICS BEARING ON THE PROTECTION OF LITERARY, MUSICAL & ARTISTIC WORKS (6th ed. 1995). "Prior to Jan. 1, 1978, the effective date of the 1976 Copyright Act, many works of authorship were protected, if at all, under state rather that federal law." Id. 112. KENNETH M. STAMP, THE ERA OF RECONSTRUCTION 1865-1877 169-70 (1965). 113. See, e.g., FISHER, NEGRO SLAVE SONGS IN THE UNITED STATES 39 (1990): "It was impossible for white people to remain uninfluenced by the behavior and singing of black folk." (describing how the exuberance of the slave's religious services transformed white church behavior). 114. For a description of music created by the Black slaves, see, JULIO FINN, THE BLUESMAN: THE MUSICAL HERITAGE OF BLACK MEN AND WOMEN IN THE AMERICAS 170 (1992). Finn notes that "[u]nder slavery, music was the only art form black people were able to practice .... For under racism. as practiced in America the august role of 'artist' was looked upon as something beyond the scope of a person of color .... so it was believed that artistic creativity was also the exclusive preserve of the European .... Here we have an unparalleled case of a whole people being denied the employment of its creative faculties." Id. 115. See TIMOTHY WHITE, ROCK LIVES: PROFILES AND INTERVIEWS XVII (1990), noting that "[iun New Orleans' Congo Square, in the early 1800s, slaves were permitted by their masters to congregate on certain days and play their native instruments.... [T]hese displaced Ashanti, Yoruban, and Senegalese people combined their own riveting rhythms with new ones that had bombarded them during their difficult passage and in their new surroundings: hymns, sea chanteys, flamenco tempos, and brass quadrilles." HASTINGS COMM/ENT L.J. [VOL. 21:339 daily tasks and reflecting experiences... [but comprised] the voice of tribal, and even of racial prayer, the molding, in art- form, of communal group sentiment, and the living fluent utterance of the people's inspiration..., It is undeniable that African-Americans, by way of popular music, have influenced pop culture. African-American innovators historically created the genres which defined popular music in America: blues, jazz, rock and roll," 7 soul, and more recently, rap and hip-hop." 8 The rap and R & B categories alone, for example, grossed $700 million for the recording industry."9 These creations pervade American society, from Madison Avenue to Disney World, and generate billions in revenues. 20 It is undeniable that the "appropriation 2' of rap is readily apparent in pop culture."'

116. NATALIE CuRTIs BURLIN, SONGS AND TALES FROM THE DARK CONTINENT (1930). 117. The influence of Black artists on and in rock and roll has been well- documented. See DAVE DIMARTINO, SINGER- 10 (1994). ("If an entire genre of music can be credited to one man, that genre would be rock and roll, and the man would be Chuck Berry."). 118. See FRANK KOFSKY, BLACK NATIONALISM AND THE REVOLUTION IN MUSIC (1970). If we were to compile the names of the ten or twenty-five or fifty most significant jazz artists, those whose Ideas move and have the greatest influence on contemporary and subsequent generations, [the] color of such a list would be overwhelmingly black ....it is probably safe to state that there have been more black innovators on any two instruments we might choose at random.., than there have been whites all instruments put together. 119. See S.H. FERNANDO JR., THE NEW BEATS: EXPLORING THE MUSIC, CULTURE AND ATrITUDES OF HIP- HOP (1994). Fernando notes that the "pervasive influence of hip-hop extends to television, film, advertising, fashion, the print media and language itself... .[wihile addressing the hopes, dreams and frustrations of America's minorities, rap is the music of a whole generation, breaching the barriers of race and class." 120. The impact of Black culture via music is global in scope. See James Bernard, A Newcomer Abroad, Rap Speaks Up, N.Y. TIMES, Aug. 23, 1992, sect. 2. (noting that "[Ilrom small clubs in Moscow to the favelas of Rio de Janeiro to MTfV in Tokyo, rap has begun to elbow Its way onto the world's stage ... increasingly, rappers in other countries are using [the music of American rappers] to reflect on and grapple with their own local realities, adding their own flavor to an American art form."). 121. Kimberlee Crenshaw, Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color, 43 STAN. L. REv. 1241, 1299 n.161 (1991). Crenshaw notes that there is "an overall pattern of cultural appropriation 19991 COPYRIGHT, CULTURE & BLACK MUSIC

In the era of the Sixties, former "colored" folks proclaimed that "black is beautiful," and literally refused to sit in the back of the bus in American life.'22 The music then, as in times gone by, recounted Black history in the making, and reflected what it meant to be Black in a white-dominated society. Bessie Smith 23 and the great blues singers of the South evoked the rural heritage and urban evolution spurred by massive Black migration northward.'24 Black American music, such as slave field songs, spirituals, and Blues, reflected the lineage of its African roots, and expressed the oral history of the Black agrarian workers and the newly minted city slickers from Chicago to Memphis.'25 Jazz masters like Miles Davis and John Coltrane expressed both the energy and anomie of the mass migration of Blacks to the cities. In doing so, these musical innovators created a legacy of genius and greatness rarely attained in any human endeavor. The transition and transmutation reflected in African- American based music, from blues to jazz to rock and roll, and on to soul through hip-hop, mirrored the complex transformation of the Black American population from country workers to urban denizens. Similarly, when , in his own words, "invented" soul' 26 and sang "say it loud, I'm that predates the rap controversy." Id& 122. Rosa Parks' courageous act of defiance in 1955 sparked the Montgomery Bus Boycott and the rise of the Civil Rights Movement to new heights. See e.g., Randall Kennedy, Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott, 98 YALE L.J. 999 (1989). 123. In a microcosm of the intense discrimination faced by Blacks in the South of the 1930s, Smith- called without exaggeration "one of the most influential singers in this country's history... stirring, troubling, electrifying, the art of Bessie Smith is a national treasure,"- died in a car accident when refused treatment at a nearby "whites only" hospital; the nearest "colored" hospital proved too far away to save Smith's life. ROLLING STONE ALBUM GUIDE 648 (1992). 124. See HENNESSEY, supra note 87, at 9 (noting that "[bjetween 1890 and 1935, the United States changed from a rural, handmade, homemade culture to an urban, mass-produced culture. Jazz as an art form and entertainment medium was a product of this shift."). 125. For a gripping individual account of the personal changes undergone by rural Blacks resulting from the migration from rural to urban areas, see THE AUTOBIOGRAPHY OF MALCOLM X (1963). 126. On the album, I'm Real, Brown boasts "Check out Brother Brown- I HASTINGS COMM/ENT L.J. [VOL. 21:339

Black and I'm proud", 2'7 the music of Black Americans mirrored growing pride (and nascent militancy) fired by the 8 29 Civil Rights movement'2 and its fiery apostle, Malcolm X.1 Black music and culture have always been inextricably intertwined, mirroring the both the centrality of music to Black culture, and of race to American history and society. 3 However, it has long been believed in the Black community that Black artists have not received economic rewards commensurate with their contributions.13 ' History validates the common belief that Black creators have historically

invented soul." JAMES BROWN, I'M REAL (BMG/Scotti Bros. 1998). Brown also claims, with some justification, to have Invented a number of other distinctive Black musical styles, genres and dances, including go-go, disco, , rap and the moon walk: "Down In D.C., they talk about the go-go but I had them kids out in the streets while they were still babies, doing with the original Disco Man. Funk I invented back In the fifties. The rap thing I had down on my Brother Rapp (Part I) .... Michael Jackson, he used to watch me in the wings and got his moon walk from my camel walk .... WHITE, supra note 115, at 69. 127. JAMES BROWN, Say It Loud - I'm Black & I'm Proud, on SAY IT LOUD - I'M BLACK AND I'M PROUD (PGD/A&M 1969). 128. See BERGEROT, supra note 105, at 57 (noting that the "history of free jazz corresponds to the history of the civil rights movement; the rise of demands under Martin Luther King, Jr. and other more radical leaders."). 129. In 1965, addressing the "worldwide revolution going on, Malcolm X noted that the startling militancy of African ndependence movements had "given pride to the Black man in Latin America, and has given pride to the Black man right here in the United States." BRUCE PERRY, MALCOLM X: THE LAST SPEECHES 127-28 (1989). The music of the times also clearly fueled Black pride in America, from Civil Rights anthems such as "We Shall Overcome" to more angry and radical songs such as Sly & the Family Stone's "Don't Call Me Nigger, Whitey." 130. Several of the defining moments, lows, and triumphs of American history- the debate over slavery in the Constitutional Convention, the Civil War, the Civil Rights Movement- have largely centered around race relations. See GEOFFREY R. STONE, et. al., CONSTITUTIONAL LAW 435 (1986) (noting that "in one form or another, the controversy about the legal status of blacks has been central to U.S. politics since the founding of the republic."). However, it has been argued in more recent years that race has played a less important role In defining status in U.S. culture and society. See JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE 144-154, 154 (1980). 131. This situation has also generated considerable anger among Black artists. See KOFSKY, supra 118, noting that: [tihere can be little question among serious students of music that jazz has inevitably functioned not solely as music, but also as a vehicle for the expression of outraged protest at the specific exploitation to which the jazz musician, as black artists, have been perennially subjected in an art of their own creation. 1999] COPYRIGHT, CULTURE & BLACK MUSIC received unequal copyright protection for their art. The copyright regime, although facially race-neutral, exists in the same society that produced a deep-seated legacy of separation and racial inequality. 132 As a result, "cultural trailblazers like Little Richard and James Brown have been squeezed out of their place in popular consciousness to make room for Elvis Presley, Mick Jagger, and others."'33

B. A History of Appropriation Until recent decades, African-Americans, as a class, have been victimized by systematic takings of their property.' 4 It

132. Issues of discrimination and exclusion persist in recent times for minorities in the arts. Despite the liberal image of the entertainment industry, minority artists and professionals face significant obstacles. See Lois L. Krieger, Note, "Miss Saigon" and Missed Opportunity: Artistic Freedom, Employment Discrimination, and Casting for Cultural Identity in the Theater, 43 SYRACUSE L. REV. 839, 844 (1992) (remarking that "an Equity survey conducted over the course of four years revealed that over ninety percent of all plays produced professionally during the mid-1980's had all white casts .... This is a problem that affects more than just the theater: dancers, painters and other artists complain of an exclusive art world in which 'artists of color have been relegated to a marginal status.'"). 133. Crenshaw, supranote 121, at 1288 n.161. 134. The issue of victimization. has recently become a hot button in the discourse on race, power politics and discrimination in American society. Shelby Steele, a commentator on the Black experience in America, has argued that African-Americans' predisposition to see themselves as victims of racial injustice, and not racial injustice itself, accounts for lack of Black advancement. See SHELBY STEELE, THE CONTENT OF OUR CHARACTER: A NEW VISION OF RACE IN AMERICA 149-65 (1990). Steele's argument has proved highly controversial, and has been widely criticized. For a critique of Steele's perspective of racial discrimination, see, e.g. Jody David Armour, Affirmative Action: Diversity of Opinions: Hype and Reality in Affirmative Action, 68 U. COLO. L. REV, 1173, 1177 n.11 (1977). It has been noted that the "concept of 'racial discrimination' may be approached from the perspective of either its victim or its perpetrator." Alan Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978). Freeman argues that while [flrom the victim's perspective, racial discrimination describes those conditions of actual social existence as a member of a perpetual underclass .... [tihe perpetrator perspective sees racial discrimination not as conditions, but as actions, or series of actions, inflicted on the victim by the perpetrator.... From this perspective, the law views racial discrimination not as a social phenomenon, but merely as the misguided conduct of particular actors. HASTINGS COMM/ENT L.J. [VOL. 21:339 has often seemed particularly ironic to this author that many of our laws are preoccupied with preventing "takings" of property, 3'5 while- as noted by Supreme Court Justice Thurgood Marshall- the property rights of Blacks36 have historically not been respected in the United States. The treatment of Black artists by the music industry and the copyright system reveals a pervasive history of infringement. For blues artists particularly, it was almost as if their work- some of the most innovative, original and imaginative artistic work ever produced in America- was, to use a legal term of art, "in the public domain", i.e., freely usable by anyone." 7 Similarly, there exist clear patterns of economic exploitation and cultural distortion of the work and forms of minority creators.138 A strikingly consistent characteristic of cultural appropriation is its one-way direction- white performers obtaining economic and artistic benefits at the expense of minority innovators. 39 Copyright law

Id. at 1052-54. 135. U.S. CONST. amend. V. The Founders' obsession with takings ironically extended to "takings" of slave property. See William Michael Treanor, The Original Understandingof the Takings Clause and the PoliticalProcess, 95 COLUM. L. REV. 782, 851 (1995) (noting that "Madison recognized that slaveowners were similarly threatened by the majoritarian process and... imagined that the clause would protect them ... [believing] that the Takings Clause established an absolute requirement that the government owed the slaveowner compensation whenever it freed a slave."). 136. See University of Calif. Regents v. Bakke, 438 U.S. 265 (1978). Justice Marshall remarked that "during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro... the position of the negro today in America is the tragic but inevitable consequence of centuries of unequal treatment." 137. See, e.g., MCCARTHY ON TRADEMARKS §1. 15[6] ("A thing is in the public domain only if no intellectual property right protects it."). 138. See Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745, 1758-59 (1989) (commenting that the privileging of whites in cultural enterprise is pervasive. .... '[rlhythm and blues' played a major role in transforming the sensibilities of many young whites, [but] the color bar prevented black musicians from capitalizing fully on the popularity of the genre they had done much to establish; instead white cultural entrepreneurs typically reaped the largest commercial rewards- a pattern still visible today, albeit in less dramatic form.). 139. See ROBERT PALMER, DEEP BLUES, 16: (1981) ("The significance of Delta 1999] COPYRIGHT, CULTURE & BLACK MUSIC has provided very little protection from such exploitation. Likewise, free competition has historically provided little relief; it has been noted that market forces did not prevent the under-inclusion of minorities in the marketplace.'4 ° The persistence of notions of white superiority and ideology of separation resulted in the cultural devaluation of works by minority artists as a class.14' The distortion and devaluation of Black art in the past was illustrated by the minstrel shows, which appropriated Black music and dance for the service of social stereotyping. 42 Similarly, because Black artists were not considered acceptable to mainstream (white) audiences, "covers" of black recordings by white artists become commonplace in the recording industry. 143 In a racially separatist society, Black artists did not have the same opportunity to be acknowledged as "great." 44 For example, the blues is often thought to be synonymous with Its worldwide Impact. According to this line of reasoning, the music is important because some the worlds most popular musicians- the Rolling Stones, Bob Dylan, - learned to sing and play by Imitating it and still revere the recorded works of the Delta masters."). 140. "Black musicians... were kept off of radio despite their popularity...." Sally Morris, One More Battle in the Ongoing War over Affirmative Action: Metro Broadcasting, Inc. v. FCC, 26 NEW ENGL L. REv. 921, 950 n.242 (1992). 141. The idiocy of discrimination in the past did not spare even the greatest geniuses of jazz. The legendary "Birdman," Charlie Parker was once "admonished [by a club owner in St. Louis] ...for having taken a drink with a customer, [who asserted] that he didn't want black musicians to drink from the same glasses his white clientele were using. Parker proceeded to break every glass in sight, explaining he couldn't be sure they hadn't all been contaminated. Further violence was only narrowly avoided." BUIrrON W. PERrl, THE CREATION OF JAZZ: MUSIC, RACE AND CULTURE IN URBAN AMERICA 199 (1994). 142. See ALLEN WOLL, BLACK MUSICAL THEATER: FROM COONTOWN To DREAMGIRLS 1 (1989). Ironically, Woll notes that the racist minstrel shows may actually have helped to facilitate the desegregation of white theaters for Black performers in later years, when Black minstrel performers came Into high demand. See id. 143. See SZATMARY, ROCKIN' IN TIME: A SOCIAL HISTORY OF ROCK-AND-ROLL 27 (1995) (noting that to reverse the dominance of independent record labels in rock music, many of which were Black owned, "larger companies signed white artists to copy, or 'cover' the songs of African-American artists, sometimes sanitizing the lyrics."). 144. See Jimmy A. Frazier, On Moral Rights, Artist-Centered Legislation and the Role of the State in Art Worlds: Notes On Building a Sociology of Copyright Law, 70 TUL. L. REv. 313, 326 (1995) (noting that it has been theorized "that the process of becoming a 'great' artist is really about being endowed by, prominent HASTINGS COMM/ENT L.J. [VOL. 21:339 great jazz composer Duke Ellington, a towering figure in American music, was rejected for a Pulitzer Prize in the 1960's "because the board deemed his music insufficiently 'serious;' it regularly awarded the prize to composers working in the

European art music idiom descended from 14Haydn,5 Mozart, Beethoven, Brahms, Mahler, and Schoenberg. Daphne Harrison, in documenting the history of women blues singers in the 1920s, noted that "the market for black. stage talent was lucrative enough to attract exploiters; living and performing conditions [for African-American women blues singers] often bordered on hazardous, [and] black talent and audiences remained under the financial control of white theater owners and booking agencies." 46 In fact, "with typical irony, it was the active search for and use of blues songs by major white entertainers that thrust147 the blues into the center of the entertainment industry." Given the context of inferiority fostered by the ideology of separation, it is likely that society would not generally value a work by a minority artist as much as the same work by a white artist. 48 As one commentator has alleged, "the indignity of [economic devaluation] is not the sole one to which the black [artist] is exposed. [They] must also watch as less talented and but more palatable white imitators and popularizers reap the financial benefits of black innovations."'49 The Black artist was thus subject to forms of art worlds, with the reputation of being a great artist. Thus, 'great' works are great not because they speak to timeless human values, but rather because their creators have been endowed, socially, with 'greatness'. Only an elaborate set of cultural myths ... sustains the belief in the great artist."). 145. Peter Marguiles, Doubting Doubleness, and All That Jazz: Establishment Critiques of OutsiderInnovations in Music and Legal Thought 51 U. MIAMI L. REV. 1155 (1997). 146. DAPHNE DUVAL HARRISON, BLACK PEARLS: BLUES QUEENS OF THE 1920's (1990). 147. Id at 44. 148. Bo Diddley, one of the. pioneer R&B and rock artists, expressed this dynamic, bemoaning that his performances of his own music never sold as well as did the versions by white artists who "covered" his work: "With me, there had to be a copy ... Itihey wouldn't buy me; but they would buy a white copy of me. Elvis got me. I don't even like to talk about it." SZATMARY,.supra 143, at 27. 149. KOFSKY, supra note 118. 1999] COPYRIGHT, CULTURE & BLACK MUSIC discrimination, exclusion and exploitation at a level rarely experienced by white artists, even where economically disadvantaged. 0

1. Patternsof InadequateProtection An examination of American popular music reveals patterns of Black musical innovation and communal creation, followed by dominant culture copying or imitation and appropriation, exist. 51 In these patterns, the "appearance of whites in a black musical form has historically prefigured the mainstreaming of the form, the growth of the white audience, and the resulting dominance of white performers."52 History indicates that from an early point in the history of the United States, European-American society has frequently claimed minority-originated music as its own creation.'53 This process was particularly pronounced in the jazz area, where the "transformation of jazz from a primarily local music rooted in black folk traditions to the tightly managed product of a national industry controlled by white businessmen and aimed a predominately white mass market paralleled the changing nature of American society."15 4 It has been noted that "primarily because of its appeal as dance music, Uazz] became so popular among whites, and white bands began playing it in

150. See SALES, supra note 82. (pointing out that "lailthough born poor, Uazz band leader Benny] Goodman had access to the 'proper' training and jobs usually denied the black players who dominate jazz history.... [Slymphony orchestras refused to hire blacks years after professional baseball was integrated."). 151. See NELSON GEORGE, THE DEATH OF 108 (1988) (1995) ("Although the most fanatical students of blues history have been white... with the exception of Eric Clapton and maybe Johnny Winter, no white blues guitarist has produced a body of work in any way comparable to that of the black giants. Blacks [innovate] and then move on. Whites document and then recycle. In the history of popular music, these truths are self-evident."). 152. DAVID SAMUELS, THE RAP ON RAP: THE BLACK MUSIC THAT ISN'T EITHER, in ADAM SEXTON, RAP ON RAP: STRAIGHT-UP TALK ON Hip-Hop CULTURE 241, 245 (1995). 153. See GEORGE, supra note 151, see also Sidran, supra note 89 ("Black music... came to light only after it was sold over the counter on an international scale through predominantly white imitations."). 154. HENNESSEY, supra note 87, at 11. HASTINGS COMM/ENT L.J. [VOL. 21:339

such large numbers, that 15from5 the 1920's to the 1940's, jazz was seen as white music." The intended model of copyright protection consists of creation of a work by an individual, reduction of the work to tangible form, and compliance with formalities, such as notice and registration prior to 1976; once these prerequisites are met, copyright protection begins. In the case of African- American artists, however, the model has not worked. Rather, we can identify four different patterns that have resulted in inadequate intellectual property protection for Black music artists. First, we have what one could call the pattern. This is a pattern of creation by Black artists, followed by outright appropriation. Frankie Lymon, along with band members and , co-wrote the 1950's hit, Why do Fools Fall in Love. However, the group's manager registered the copyright for the composition under only Lymon's and the manager's name.'56 This pattern was common among Black blues artists in the first half of this century, who were often illiterate, and who were taken advantage of by roving record companies and promoters. Second, we have what 'could be called the Little Richard/Chuck Berry Pattern. Under this scenario, we have creative innovation by Black artists, followed by an unconscionable sale or transfer of the copyright, typically to the record company or the artist's manager.5 7 Both Richard

155. GEORGE, supra note 151. See also, MILES MARK FISHER, NEGRO SLAVE SONGS IN THE UNITED STATES 22, 23 (1990) (Similarly, in the earlier part of this century, white academics developed "the hypothesis that Negro spirituals were copied from white revival songs ... [and posited that] Blacks were "simply imitators who pathetically cried in their captivity." Fisher notes that in the mindset of the age, it "'was fair to say"' that the 'stream of Negro music in America starts and finishes with white men."' 156. See Don E. Tomlinson, Everything That Glitters Is Not Gold: - Music Publisher Agreements and Disagreements, 18 HASTINGS COMM/ENT L.J. 85,129 (1995). Despite proof the copyright to the song had been acquired under duress, the Second Circuit rejected Merchant and Santiago's recent copyright claim because the statute of limitations had long run out. See Donald E. Biederman, Limitations of Claims of Ownership and Claims for Royalties, 20 HASTINGS COMM/ENT L.J. 1, 5 (1997). 157. For an examination of unconscionable contracts in the music industry, 1999] COPYRIGHT, CULTURE & BLACK MUSIC

and Berry, and many Blues, Jazz and R&B artists of the past, sold hit compositions to record companies for absurdly small sums. 158 Third, we fird a pattern of creation- and often innovative creation of a whole new style or genre of music by a Black artist- followed by imitation by white performers, who typically reap the real commercial benefit of the innovation. This might be called the Bo Diddley pattern. Bo Diddley authored a number of hit tunes, but found that white performers "covering" his work eliminated his opportunity to become a hit-maker himself. Fourth, we have a pattern of creation by Black artists, followed by imitation and distortion by white performers. This might be called the Minstrel Show pattern. The distortion either (1) portrays Black culture in negatively stereotypical ways, such as the old Minstrel Shows, or (2) waters down the vitality of Black music to make it more palatable for white audiences, the so-called "cross-over" phenomena.

2. Harm To The Community It has been posited that the "act of copying seems to harm no one.., there is no perceptible loss, no shattered lock or broken fencepost, no blood, not even a psychological sensation of trespass . ... "' This view fails to recognize the pain of

see Tamera H. Bennett, Risky Business: Rejecting Adherence to Industry Standards in Exclusive Songwriter Agreements, 4 TEX. WESLEYAN L. REv. 71 (1997) (noting that copyright law has failed to "protect creative persons from unconscionable contractual terms that have had a long history and tradition in the music industry."); see also, Hal I. Gilenson, Badlands: Artist-Personal Manager Conflicts of Interest in the Music Industry, 9 CARDOZO ARTS & ENT. L.J. 501 (1991) (arguing that the rife existence of conflicts of interests promote "unethical and abusive business practices which often result in the exploitation and depredation of recording and other music artists."). 158. This dynamic is arguably more rooted in contract bargaining inequality than in copyright structure- clearly these situations present the problem of "harsh... terms which the party would not have agreed to except for his weak bargaining position" common to the music industry. See Tomlinson, supra note 156, at 93 (1995). (contract issues of adhesion and unconscionability, while fascinating, are beyond the scope of this article). 159. Gordon, supranote 23, at 1346. HASTINGS COMM/ENT L.J. [VOL. 21:339 artists who, having created an original work find their works appropriated without compensation.' 0 The appropriation of Black music without compensation feeds into the often-intense experience of anger that is part of the collective Black experience in America.' 6' No one can be happy about being or feeling victimized, and no one likes to have anything personal taken from them. As one commentator has noted: [miost people possess certain items they feel are almost part of themselves... [such] objects are closely bound up with personhood because they are part of the way we constitute ourselves as continuing personal entities in the world ... an object is closely related to one's personhood if its loss causes pain that cannot be relieved by the object's replacement. 162 Clearly, songs, poems, lyrics, art, and music are such objects, born of intensely personal experiences.'63 This "property" looks and feels more connected to personhood than "tangible" forms of property, such as land, buildings or business property. Misappropriation of intellectual property,6 4 such as music and art, hurt at a very spiritual level.1 Inadequate copyright protection has increased the economic inequality in our society. Blacks, deprived by legal and social

160. See Note, An Author's Artistic Reputation Under the Copyright Act of 1976, 92 HARV. L. REV. 1490 (1979) ("An author ... desires legal protection not only for his work's economic value, but for the value of his artistic reputation expressed within his work.... Failure to associate the author's name with his work denies him recognition of his achievement .... Alteration of an author's work both misrepresents the author's efforts and mischaracterize the personality that informs the work." Id. at 1490-91. 161. Sidran quoted an anonymous Black artist on the subject of the appropriation of Black music: "You see, as soon as we have a music, the white man comes and imitates it. We've had jazz now.for fifty years, and in all those fifty years, there's not been a single white man, perhaps leaving aside Bix [Beiderbeck] who has an idea. Only the colored men have ideas. But if you see who's got famous, they're all white." Sidran, supranote 89, at 57. 162. Radin, supra note 16, at 959. 163. See Kwall, supra note 29, at 2 (copyright law protects works that are the product of the creator's mind, heart, and soul, a degree of protection in addition to that which guarantees financial returns is warranted."). 164. Many Black musical forms reflect intensely personal, and often spiritual experiences. See PAUL C. HARRISON, BLACK LIGHT: THE AFRIcAN-AMERICAN HERO 91 (1993) (noting that "[alt the core of African-American music, in all its various modes of expression- Gospel, Blues, Pop, Jazz- is an everpresent sense of spirituality which cannot be repressed."). 1999] COPYRIGHT, CULTURE & BLACK MUSIC segregation and discrimination of access to capital, property, and the best jobs, could least afford to miss the opportunity of residual income offered by copyrights.1 65 Yet history indicates that the Black community has not reaped the benefits of its phenomenal creativity. Clearly, one can find examples of outright fraud. Greed also played its part.'66 C. The Relationship Between Appropriation of African- American Music and American Copyright Law. When we of private property, we think of three characteristics: the right to exclude others, title (ownership), and the right to collect income or rent off the property.'67 In each of the patterns of appropriation of Black cultural production, we see Black artists deprived of some combination, if not all three, of the private property characteristics of creative works. The American copyright system, unlike other areas of property law, identifies an "author" as the source and owner of certain rights, without ever locating authors in any social context. 168 Obviously, not all minority artists experience discrimination in the protection of artistic property. However, minority artists have almost certainly borne a heavier burden

165. See, e.g., Note, The Perpetuationof Discriminationin Public Contracting:A Justificationfor State and Local Minority Business Set-Asides After Wygant, 101 HARV. L. REV. 1797, 1807 n.62 (1988) (noting that "minority businesses face unique barriers because of racial discrimination... such discrimination exacerbates the economic disadvantage of blacks because they have limited personal wealth.. "). 166. It has been noted that "the question of copyright has always been joined with that of commercial value" and that by providing economic incentives to authors "our Constitution relies on wrangling greed to promote the advancement of both creativity and profit." Jane Ginsberg, Creation and Commercial Value: Copyright Protection of Works of Information, 90. COLUM. L. REv. 1865, 1866 (1990). In the case of many Black artists in-music, this 'theorem has been turned on its head- wrangling greed denied artists of compensation and profit. 167. For a detailed analysis of the characteristics of property, see Heller, supra note 36, at 663 n. 187 citing Honore's list of Eleven Property incidents. 168. See Gregory Albright, Digital Sound Sampling and the Copyright Act of 1976: Are Isolated Sounds Protected?, 75 COPYRIGHT L. SYMP. (ASCAP) 38, (1992) (noting that "copyright in a work of authorship vests initially in the person or persons who authored the work... only authors or those who claim through them can be owners of the copyright in a work of authorship"). HASTINGS COMM/ENT L.J. [VOL. 21:339 of exploitation. Although it cannot be said that the copyright system was intentionally designed to disadvantage Blacks, it has nonetheless operated in such a fashion. The factors which disadvantaged African-Americans as a group from acquiring traditional forms of wealth and property also imposed disadvantages in the intellectual property system.16 It has been noted that: intellectual property law can ameliorate but not eliminate underlying disparities in bargaining power [and accordingly] economic need might induce an impecunious author or inventor to part with control over her work, and even give up liberty to use it, perhaps in return for fairly small rewards. Thus, although intellectual property improves the creative person's position, it can guarantee neither70 adequacy of compensation nor continuation of control. 1 In the abstract, this observation seems sensible enough, but in the concrete, it fails to account for invidious, systematic discrimination which consistently forced a class of artists to part with their creative works "for fairly small" or no economic rewards.' 7 The impact on artists personally of the appropriation of their works was often devastating and tragic.' 72 Rock pioneer Little Richard sold his publishing rights to the record company for fifty dollars, "and part of that deal seems to have included the addition of a mystery name... to the songwriting credits."173 One might draw a parallel between Blacks in the share crop system to Black artists in the recording industry. The share crop system divested economic

169. If this is the case, It would not be unprecedented to explore some remedy for past discrimination, as Congress did in passing employment discrimination legislation. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) (noting that the primary purpose of Title VII of the Civil Rights Act was "to insure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens."). 170. Gordon, supra note 23, at 1345 n.8. 171. See id. 172. King Oliver, the great New Orleans jazz pioneer and foundation artist "ran a fruit stand before being reduced to working as a poolroom attendant[,]" where he died in 1938. DAN MORGENSTERN, JAZZ PEOPLE 35 (1976). 173. JIM DAWSON & STEVE PROPES, WHAT WAS THE FIRST ROCK AND ROLL RECORD? 189 (1992). Apparently, the mystery credit for Tutti Frutti, which Richard composed exclusively, was a dummy company for Richard's manager. See id. 19991 COPYRIGHT, CULTURE & BLACK MUSIC

compensation from Black farmers who did not own capital resources (such as equipment, seeds, etc.), or maintain the financial records detailing who owed how much.174 Furthermore, many Black farmers were illiterate or sermi- literate, reflecting a legacy of segregated and substandard educational facilities. The result was pervasive exploitation of agrarian Blacks, despite the theoretical race-neutrality of the share-crop system.'75 Similarly, agents of the recording industry appropriated intellectual property from these same agrarian Blacks who176 created the music which came to be known as the blues. Again, as in the share-crop system, white businessmen controlled the capital resources (such as record studios and publishing houses), as well as access to the expertise needed to secure legal protection. 7 7 In the employment area, Blacks had been subject to rampant exploitation; the situation seems identical in the artistic area, in spite of, and to a degree perhaps because of, copyright law.178 Particularly in a multi- billion industry, such as the recording industry, it seems difficult to reconcile the fact that while Black-created music is omnipresent, the flow of dollars has only occasionally created Black millionaires.

174. See LEON F. LITWACK, BEEN IN THE STORM So LONG: THE AFTERMATH OF SLAVERY 387-449 (1979). Litwack concluded that "the former slave found all too little had changed [from subjugation under slavery to the sharecrop system]... [b]y resorting to a sharecropping arrangement [the former slaves] had hoped to achieve a significant degree of autonomy; instead, [they] found [themselves] plunged ever deeper into dependency and debt." Id&at 448. 175. See fi. at 448-449. 176. See PALMER, supra note 139, at 17. "Blues in the Delta ... was created not just by black people but by the poorest, most marginal black people. Most of the women and men who sang and played it could neither read nor write. They owned almost nothing and lived in virtual serfdom." I&L 177. The exploitation of minority artists in the music industry has led some to compare the situation to colonialism. See Kofsky, supra note 118, at 12. "With very minor exceptions, it is whites who own the major economic institutions of the jazz world- -the booking agencies, recording companies, nightclubs, festivals, magazines, radio stations, etc. Blacks own nothing but their own talent." Id. 178. It is said that "[tihe ambition of most every bluesman was to get on to records. It was common in the 1920's for field scouts to move through major cities of the deep South seeking more grist for the lucrative 'race records' mill." WHITE, supra note 115, at 6. HASTINGS COMM/ENT L.J. [VOL. 21:339

The fact that minority artists received less protection- or in many cases no protection- for their compositions undermines the incentive theory of intellectual property laws. Many Black artists received little no economic reward for their creations. 79 Others certainly received less than what they should have.'8 ° Something beyond the Western notion of incentive must have motivated these blues and jazz artists of Black ancestry to continue to create. 8' Perhaps the most taxing structural element of the copyright regime vis-a-vis Black artists has been the requirement of reducing works to a tangible form.'82 The copyright law will not protect works which are not "fixed" in some tangible form. In practice, this means that the work

must be reduced to writing. Black culture, however,8 3 historically reproduces itself out of an oral predicate.' Furthermore, as a result of educational deprivation, many Black artists of the past could not functionally read or write. The reduction to tangible form or embodiment tenet clearly values written expressions, which will be deemed "tangible" over non-written, i.e. oral expressions, and non-tangible

179. Professor Longhair (born Henry Roeland Byrd) wrote the anthem of the annual New Orleans Mardi Gras celebration "but he did not own it, and he never received a dime for the single in either writer's or artist's royalties." WHITE, supra note 115, at 14-16. 180. See LEONARD FEATHER, FROM SATCHMO TO MILES 15-16 (1972) commenting that: Louis Armstrong's situation was common to black artists during the Prohibition years. He was being manipulated by the rival gangs that controlled many of the speakeasies where musicians worked. Although his records would become classics, his musical genius was, at the time, secondary to his role as a pawn in a sinister game he scarcely understood. 181. See Univ. of Cal. Regents v. Bakke, 438 U.S. 265, 310 (1978) (noting that "the purpose of helping certain groups ...perceived as victims of 'societal discrimination' does not justify a classification that imposes disadvantages upon persons.., who bear no responsibility for whatever harm the beneficiaries... are thought to have suffered."). 182. See, e.g., Gregory S. Donat, Fixing Fixation: A Copyright with Teeth for Improvisational Performers, 97 COLUM. L. REV. 1363, 1405 (1997) (noting that improvisational performers, including Jazz artists, "have been needlessly marginalized by Federal Copyright Law for far too long."). 183. See SIDRAN, supra note 89. 19991 COPYRIGHT, CULTURE & BLACK MUSIC improvisation. ' The structure of the copyright regime itself, which requires fixation of works of authorship in a "tangible medium" could be said to impose disadvantages on Black artists as a class, who were raised in an oral tradition dating back to Africa.'18 It has been noted that "[tihe structure of preliterate society renders conventional intellectual property protection ineffective. Typically, such cultures lack both written records and formal government. As a result, western- style patent and copyright laws, which require elaborate documentation and bureaucratic enforcement, are not feasible". 8 ' Two prominent examples are jazz music and African- influenced dancing. As one commentator pointed out: [tlhe Black approach to rhythm, being a function of the greater oral approach to time, is more difficult to define in writing. Capturing the rhythms of African or modem Afro- American music with Western notation is a lot like trying to capture the sea with a fishnet .... the complexity of this rhythmic approach is in large part due to the value placed on spontaneity and the inherently communal nature of oral improvisation. Other music scholars have similarly noted the incompatibility of jazz music with a system of written notation.88

184. See Benjamin Kaplan, Publication in Copyright Law: the Question of PhonographRecords, 103 U. PA. L. REV. 469, 473 (1955) (noting that "[clopyright law, precisely because it has taken shape around the model of a book communicated to the public by multiplication of copies, has experienced difficulty, not to say frustration with cases where communication is by performance or representation"). 185. One of the few articles that makes this point, noting that the "legal protection for Ijazz] improvisations is, in many cases, limited or non-existent" is Stanley Turk, Copyrights and Jazz Improvisation: Creativity Unprotected, 1 U. BALT. INTELL. PROP. L.J. 66 (1992). Since, as Turk accurately notes, "[i]mprovisation is the heart and soul of jazz," there appears to be a fundamental contradiction between the aims of the music and a system "which limits the public performance rights" of improvisational forms of production. Id at 75. 186. Mark Suchman, Invention & Ritual: Notes on the Interrelationof Magic & Intellectual Property in PreliterateSocieties, 89 CoLuM. L. REv. 1264, 1272 (1989). 187. SIDRAN, supra note 89, at 7 (emphasis added). 188. See, e.g., GENE LESS, MEET AT JIM AND ANDY'S: JAzz MusIcIANs AND THEIR WORLD 35 (1983). "For jazz finds its last and supreme glory in the skill for improvisation exhibited by the performers .... [a] good jazz band should never play, and actually never does play, the same piece twice in the same manner." Id. HASTINGS COMM/ENT L.J. [VOL. 21:339

Prior to 1976, it was necessary for musical compositions to be in written form to obtain copyright registration. 18 9 Hennessey notes that the "improvisation and tonal variations that were at the core of jazz performances could not be captured on sheet music, the main form of music distribution before 1914."190 It has been noted that "[e]ven today ... music notation is the only way to actually copy a musical composition. A phonorecord merely captures a particular performance by musicians, whose interpretation and technique cause the performance to exist independently from the composition."' 9 ' However, "a singer's performance is not copyrightable under the federal law. ' In contrast to patent law, the copyright law has an extremely low threshold of originality. This threshold arguably preserves First Amendment values of free expression, but clearly promotes imitation which does rise to the level of actual plagiarism, or copying. 193 In practice, therefore, Black innovators in music have been powerless to prevent white imitators from capitalizing on their ground-breaking efforts, and, in a racially polarized society, reaping the profits of Black innovation and creativity. 9 4 The copyright regime's standard of

189. See BoORSrYN ON COPYRIGHT §2.07 (1993). In contrast, the 1976 Act "protects all musical compositions from the time of their fixation in any form, whether published or unpublished, registered or unregistered." Id. 190. HENNESSEY, supra note 87, at 32-33. 191. Mark A. Bailey, Phonorecords and Forfeiture of Common-Law Copyright in Music, 71 WASH. L. REV. 151, 158 (1996). The author also points out that "[when Congress first extended the Copyright Act to protect musical compositions, sheet music was the only way such works were copied and registered." Id at 157. 192. Melissa M. Davis, Note, Voicing Concern: An Overview of the Current Law Protecting Singers' Voices, 40 SYRACUSE L. REV. 1255, 1265-66 (1989). The author noted that [allthough the law prohibits unauthorized copying of songs and musical compositions, actual performances can be freely imitated ....Vocal improvisations and actual performances of a song are not 'fixed' within the meaning of the [Copyright Act], and therefore are denied copyright protection." Id. 193. For example, In the area of sound recordings, "a recording artist who intentionally creates a sound recording which imitates, simulates or impersonates a copyrighted sound recording does not violate the right of reproduction as long as the recording does not recapture the actual sounds of the protected recording by mechanical means." Edward T. Saadi, Sound Recordings Need Sound Protection, 5 TEx. INTELL. PROP. L.J. 333, 337 (1997). 194. This dynamic has been particularly pronounced in the area of country 19991 COPYRIGHT, CULTURE & BLACK Music minimal originality for authorship, while prohibiting outright copying, encouraged imitation.' 95 Certainly, a strong current favoring imitation animates American jurisprudence.'96 There is an inherent tension between compensating originators and promoting creativity by permitting borrowing. 197 Imitation may be the sincerest form of flattery, but in a society where separation is the norm, the direction of who profits from imitation has been decidedly one-way in its direction.' 98 Our music. Virtually all the top-grossing country music stars acknowledge their debt to Black music sources, and as the New York Times noted, virtually no Black artists are promoted in the country music world. See Mantho Bayles, It's Not Sexist, It's Only Rock and Roll, N.Y. TIMES, Sept. 28, 1996, sec. 1 at 23. 195. The phenomena of imitation, arguably fostered by the copyright regime's tolerance of imitation, cuts across racial lines. For instance, it has been posited that ["blues] artists have all copied from the style of past masters .... Ifs hard to make an easy judgment as to whether an arrangement of such music is indeed new and original enough to claim copyright," Hall, supra note 82, at 22 1. 196. See American Safety Table Co. Inc. v. Schreiber, 269 F.2d 255, 272 (2d Cir. 1959) (pronouncing the "imitation is the life blood of competition .... [The unimpeded availability of substantially equivalent units that permits the normal operation of supply and demand to yield a fair price society must pay for a given commodity."); see also, In Re Morton-Norwich Products, Inc., 671 F.2d 1332 (2d Cir. 1982) (positing that "there exists a fundamental right to compete through imitation of a competitor's product, which can only be temporarily denied by the patent or copyright laws"). 197. See, e.g., Alfred C. Yen, When Authors Won't Sell: Parody, Fair Use and Efficiency in Copyright Law, 62 U. COLO. L. REv. 79, 81 (1991) (noting that "the creation of new works is heavily dependent on the ability of new authors to borrow from already existing materials"). Ironically, the issue of "borrowing" in music did not become a hot topic until inner-city youth began incorporating protected sounds in rap music "samples". See, Note, Sherry Carl Hempel, 1992 U. ILL. L. REv. 559, 589, noting that although "digital sampling pervades all of rock music, much the attention and controversy is focused on rap musicians... rap was created by young blacks from the inner city ... [tihere is some evidence that racial and socio-economic biases could be the reason for all the attention." See also, Note, Matthew M. Passmoore, A Brief Return to the Digital Sampling Debate, 20 HASTINGS COMM/ENT L.J. 833, 845 (1998), noting that "samples from copyrighted works become the raw artistic material of many rap artists in their critique of a majority culture that often excludes them." 198. See PETER Ross, No RESPECT; INTELLECTUALS AND POPULAR CULTURE 67-68 (1989). [Q]uestions about imitation, and (the romanticizing of) authenticity, while they relate primarily to African-American vernacular traditions, are also part and parcel of the long transactional history of white responses to black culture, of black counter-responses, and of further countless and often traceless negotiations, tradings, raids, and compromises .... [which signify] a racist history of exploitation exclusively weighted to dominant white interests. Given such a history, it is no wonder that terms like "imitation" are often read directly HASTINGS COMM/ENT L.J. [VOL. 21:339 society has arguably become less racially stratified in recent decades, yet the pattern seems present today; one of the top- selling rap songs of all time is Ice, Ice Baby, by white rapper Vanilla Ice.' 99 Similarly, The Beastie Boys, a white group, were the first rap group to top the Billboard album charts."' The irony of this is stark when compared to the fact that "[flap music is a Black cultural expression that prioritizes black voices from margins of urban America....2 Perhaps even more ironic is that judges in recent times have characterized one of todays primary Black art - 20 2 forms rap- as a form of theft. Under the idea-expression doctrine, only specific expressions of an author are protected, not the underlying ideas embodied in the work. Some have argued that the idea- expression doctrine is intellectually bankrupt. 20 1 The idea- as "theft" and "appropriation." See id. 199. Vanilla Ice was a white rapper who completely faked his "credentials" as a tough inner city kid; it turned out on Investigation that Ice was raised in a posh Texas suburb. See BRUCE HARING, OFF THE CHARTS: RUTHLESS DAYS & RECKLESS NIGHTS INSIDE THE MUSIC INDUSTRY 107, 108 (1996). Haring also notes that "Vanilla Ice's debut album, released on September 10, 1990, was the fastest selling album since Michael Jackson's Thriller .....'Ice, Ice Baby' became the first rap single on the Singles chart." Id. 200. See Jeffrey H. Brown, Note, "They Don't Make Music The Way They Used To": The Legal Implication of "Sampling" in Contemporary Music, 1992 WIS. L. REv. 1941, 1949, n.37 (1992). 201. TRICIA ROSE, BLACK NOISE: RAP MUSIC & CULTURE IN CONTEMPORARY AMERICA 2 (1994). The cultural clash becomes even more ironic when culturally obtuse white judges rule in rap cases: the judge in the 2 Live Crew obscenity case held, preposterously, that rap music conventions- call and response, boasting, and "doing the dozens"- were not examples of Black culture. See Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578, 594 (S.D. Fla. 1990). 202. See Grand Upright Music Ltd. v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991). The district court in that case upheld a copyright infringement claim by Gilbert O'Sullivan for rapper Biz Markie's sampling of the song Alone Again, Naturally. In this, the first sampling case, Judge Duffy cited no other authority than the Bible's commandment that 'Thou shalt not steal." See id. See also, Carl Falstorm, Note, Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of DigitalSound Sampling in Popular Music, 45 HASTINGS L.J. 359 (1994). 203. See John Shepard Wiley, Jr., Copyright at the School of Patent, 58 U. CHI. L. REV. 119, 121 (1991) (characterizing the idea-expression dichotomy as "the most notorious problem in copyright law). In criticizing the doctrinal usefulness of the doctrine, Wiley argues that "the idea/expression doctrine is incoherent and lacks any stated alternative foundation." Id. at 123. 19991 COPYRIGHT, CULTURE & BLACK MUSIC

expression doctrine has also penalized the most innovative artists in blues, jazz, and rock, essentially denying protection of their signature styles and denying compensation for the creation of genres. Little Richard's syncopated whooping style of singing, or the ragtime chops of W.C. Handy would be considered a style, essentially a non-protected idea, rather than a protected expression. However, copyright will generally not protect either style or genres, and imitation of style (e.g. Little Richard's style of singing to the Beatles on She Loves You, Yeah), is generally not actionable. 4 Accordingly, while a jazz composition is protectible under the copyright system, the idea or genre of jazz would not be.2 °5 This doctrine can be said to have a disparate impact on innovators of genres, vis-a-vis imitators that capitalize on a non-protectible "idea." The idea- expression dichotomy of intellectual property precludes monopoly protection of rap or jazz as a genre. Yet, many of the innovators of these genres lived or died in relative obscurity and poverty, while the imitators, typically white and not nearly as creative or innovative musically, reaped a windfall.Y0 6

IV Civil Rights As Intellectual Property Rights Given the pervasiveness of the economic exploitation of Black artists, and the cultural distortion and devaluation of their works, it could be argued that the lack of legal protection

204. See, Judith B. Prowda, Application of Copyright and Trademark Law in the protection of style in the visual arts, 19 CoLuM.-VLA J.L. & ARTS 269, 275-76 (1995). 205. See id. at 269, 275-76. Prowda notes that [s]tyle is one of the most elusive concepts in the history of culture and it is one in which English-speaking art historians have been content to leave ambiguous.... far from being a superficial characteristic of art, [style] belongs to the deepest foundations of cognition, or the inner essence of things." Prowda concludes "copyright law is ill- equipped to protect an unestablished artist whose works are not widely recognized." Id at 296. Significantly Prowda recognizes that "[pirotecting style would give unknown artists the opportunity to reap the benefits of their innovation." Id. 206. Revisionist jazz critics such as Ralph Gleason have asserted that "[ilt is possible to speculate that all the white musicians could be eliminated from the history of [jazz] music without significantly altering its development." See Sales, supra note 82, at 35.